Introduction To Labour Law Notes

1. Sources and History

Introduction

Labour law: the scope and nature of the subject

Labour law as a discipline

Defined by subject matter and intellectual tradition.

Rules which govern the employment relationship.

Broader – normative framework for the existence and operation of all the institutions of the labour market: the business enterprise, trade unions, employers’ associations and, in its capacity as regulator and as employer, the state.

Hepple – Labour law stems from the idea of “the subordination of the individual worker to the capitalist enterprise”; it is above all the law of dependent labour and hence is specific to those categories of economic relationship which in some way involve the exchange of personal service/s for remuneration.

Labour law concerned with how these relationships are constituted, a role which accorded primarily to contract, and with how they are regulated, a role shared by common law, social legislation and extra-legal sources like collective bargaining and workplace custom.

Kahn-Freund – labour law is more than just the sum of its parts; implies that labour law should embrace “sociology, social policy and the theory of business organisation”. Stresses the functional inter-dependence of the positive law with extra-legal sources of regulation, in particular collective bargaining.

Although the notion of labour law as the normative framework for the institutions of the labour market has commanded increasing attention in recent years (Davies and Freedland, Collins, Deakin and Wilkinson), it should be borne in mind that other closely related areas of law are also important determinants of labour market outcomes. Social security law – Wikeley and Harris: extends far beyond the employment relationship to embrace many aspects of the relationship between the citizen and the state in the distribution of economic resources. Also company law and taxation law. industrial sociology, labour economics, feminist legal theory and political theory.

Individual labour law – relationship of employer and employee

Collective labour law – collective bargaining, trade union organisation and industrial action

Cannot be adequately considered in isolation from one another e.g. in analysing the individual employment relationship, necessary to take into account influences of norms which are derived from collective soruces e.g. collective bargaining, and the contract of employment plays a fundamental role in relation to the economic torts and other aspects of the law governing industrial action.

Labour law: collective bargaining and labour standards

Theme – role of collective bargaining in relation to social legislation.

Collective bargaining – process of negotiation between an employer and group of employees and one or more trade unions, designed to produce collective agreements.

Two functions of collective agreements are important: the procedural or contractual function of regulating the relationship between the collective parties themselves; and the normative or rule making function, which consists of the establishment of terms and conditions which are applicable to the contracts of individual workers.

Collective agreements may operate on a number of levels. Sector level-bargaining refers to a process of negotiation which takes place at the level of a particular trade or industry, normally between an employers’ association and one or more trade unions. This is now rare. More usual for bargaining to take place either at the level of the company or enterprise or within companies at the level of the plant or establishment.

Social legislation – legislation in the field of employment and can be two types. Regulatory legislation directly affects employment relationships, typically by laying down statutory norms which override the parties’ own agreement e.g. minimum wage and unfair dismissal legislation. Auxiliary legislation consists of legal supports for the process of collective bargaining and other aspects of collective organisation- its impact on the employment relationship is indirect e.g. laws which require employers to recognise trade unions for the purpose of collective bargaining and laws which oblige employers to consult with or give information to representatives of the workforce.

Labour standards – protective norms which govern the employment relationship – can derive either from legal sources (legislation or common law) or extra-legal sources (collective bargaining).

Assessment: the prospects for labour law

Continuing modern emphasis on the role of labour law in regulating the labour mark in the interests of promoting a flexible and competitive economy (Davies and Freedland).

If the principal purpose of labour law is no longer the support of collective bargaining, what is it?

Davies and Freedland have identified the ever-intensifying problem for labour law as being “how to reconcile the various demands upon governments in relation to industrial society, within a framework of reasonably acceptable, democratic, representative and humane labour law”. Accordingly, the relationship between labour market regulation, economic efficiency and competitiveness is a central issue in labour law today.

At the same time, the decline of collective bargaining has led to renewed interest in how far labour law could or should be used to articulate certain fundamental social and economic rights. The degree to which such fundamental rights may be enshrined in law without burdening enterprises with excessive costs, or creating harmful labour-market rigidities, continues to be at the heart of debates over the future development of legislative policy.

Labour law and economic efficiency

The debate over labour market flexibility and the efficiency of labour law has stressed the degree to which over-rigid labour laws and excessive social security provision in Britain have been responsible for slowing down processes of labour market adjustment.

The 1994 European Commission White Paper, European Social...

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